Monday, November 22, 2010

On my blog of June 5, 2010, titled "Mmembe: Simply a Victim of the Wrongs of Yesterday", I wrote that "there is nothing sinister or euphoric about Fred Mmembe's conviction and incarceration. Contempt of court laws have always existed and will continue to exist".

I further wrote that "Mmembe's case should be debated in the broader sense and not the narrow self-serving purview of political rhetoric that it is currently being given".

Today, there is an unnerving silence on Emmanuel Mwamba's incarcerat...ion on contempt of court from the Civil Society Organisations (CSOs) in Zambia. Are CSOs in Zambia telling us that Mmembe deserves exemption from the law, and Emmanuel does not?

Exactly who do these so-called human rights and good governance CSOs represent, if they only make noise when it is a media person that is incarcerated? Please CSOs in Zambia STOP the manifest lack of impartiality, else it will be clear that it was NOT the contempt of court law that you were against, but merely the incarceration of Mmembe on the same law that many Zambians are incarcerated.

Monday, November 15, 2010

There is a presumption of divinity in the debate of section 37 of the ACC ACT No. of 1996, and more so from the voices that continually are trying to convince me that "abuse of office", has been removed in the proposed Anti-Corruption Bill of September 16, 2010. Slowly, there is no more doubt in my mind that if it is not mere political rhetoric on their part, then this "law" in their minds is of such olympian excellence that it has been inspired by the gods. The question then is. Can the gods be wrong? No. The gods are never wrong, it is always the interpretation that is wrong.

In demystifying the assumed removal of section 37, and my consistent argument that nothing in the proposed Bill (when read together with the Forfeiture of Proceeds of Crime ACT No. 19 of 2010) has resulted in what is being argued as "the removal of abuse of office offence", I first start by advising that a good argument can never be founded on binary logic. A good argument is founded on dialectics.

Thus, that I argue the contrary to what is the mainstream in the private media, should NOT be construed to mean I accept Government's defense of the issue. I don't. Their rationalisation and mine are not founded on the same reasoning. There are merits and demerits in the Government's defense, but that should not be something any reasoning person should concern themselves with. The proposed Bill, and other anti-corruption laws are there in black and white. One does not have to argue in a manner that George Kunda or Mulongoti argues. That is, their opinions, and whereas one may or may not respect their opinions, I expect that logic should dictate that any person commenting on the issue should synthesise the proposed Bill in the broader context of anti-corruption.

If they did so, then the divinity so proclaimed in section 37 will still be evident.

To understand this, we have to consider section 37 in its pure nakedness.

Section 37 au naturel

Section 37 titled “Possession of unexplained property”, reads as follows:(1) The Director-General, the Deputy Director-General or any officer of the Commission authorised in writing by the Director-General may investigate any public officer where there are reasonable grounds to believe that such public officer – (a) has abused or misused his office position or authority to obtain property, wealth, advantage or profit directly or indirectly for himself or any other person; (b) maintains a standard of living above that which is commensurate with his present or past official emoluments; (c) is in control or possession of pecuniary resources or property disproportionate to his present or past official emoluments; or (d) is in receipt of the benefit of any services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act.

(2) Any public officer who, after due investigation carried out under subsection(1), is found to – (a) have misused or abused his office, position, or authority to obtain advantage, wealth, property or profit directly or indirectly; (b) maintain a standard of living above which is commensurate with his present or past official emoluments; (c) be in control or possession of pecuniary resources or property disproportionate to present or past official emoluments; or (d) be in receipt of the benefit of any services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act;

shall, unless he gives a reasonable explanation, be charged with having, or having had under his control or in his possession of pecuniary resources or property reasonably suspected of having been corruptly acquired, or having misused or abused his office, as the case may be, and shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control or into his possession or, as the case may be, how he came to enjoy the benefit of such services, be guilty of an offence.

With hindsight, what I have found interesting about this section is its title. Possession of unexplained property. And this is where the argument that "abuse of office" has been removed becomes obtuse. The critical salient features of this section are property, wealth, advantage and profit.

1. Is the section not prescribing that possession of unexplained property is a crime?

2. Is the section also not prescribing that gaining advantage or profit (whether tangible or intangible) is a crime?

3. Isn't the section telling us that property, wealth, advantage and profit is a manifestation of one misusing or abusing his office, position, or authority?

4. Conversely, isn't a public officer who, being concerned with any matter or transaction falling within, or connected with, that public officer’s jurisdiction, powers, duties or functions, corruptly solicits, accepts or obtains, or agrees to accept or attempts to receive or obtain for oneself or for any other person any gratification in relation to such matter or transaction (Section 99 (that is, Abuse of authority of office) of the Penal Code ACT CAP 87 ) misusing or abusing his office, position, or authority?

If 1 to 4 are correct, then how can section 37's divinity not be read in the proposed Bill and the Forfeiture of Proceeds of Crime ACT.

I argue this, because possession of unexplained property is criminalised in Section 54, Seizure of property, of the proposed Bill. This section provides that:

(1) Where in the course of an investigation into an offence under this Act, an officer has reasonable grounds to suspect that any movable or immovable property is derived or acquired from corrupt practices, is the subject matter of an offence or is evidence relating to an offence, the officer shall, with a warrant, seize the property". (4) For the purpose of this section, “property” means real or personal property of any description, and includes money and any interest in the real or personal property..

And note that Section 68 of the proposed Bill provides that, the provisions of the Forfeiture of Proceeds of Crime Act, 2010, shall apply in relation to the seizure and forfeiture of any proceeds or property corruptly acquired by any person and any other related matters.

Section 31, Non-conviction based forfeiture order for tainted Property, of the Forfeiture of Proceeds of Crime ACT No. 19 of 2010 provides that:“Subject to subsection (2), where a public prosecutor applies to the court for an order under this section and the court is satisfied on a balance of probabilities that the property is tainted property, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the State.”

The Forfeiture of Proceeds of Crime ACT defines tainted property as:“means – (a) any property used in, or in connection with, the commission of the offence; (b) property intended to be used in, or in connection with, the commission of the offence; or (c) proceeds of the offence”.

Critically, if one has wealth, property or income disproportionate to one’s known source of income; or wealth, property or income disproportionate to one’s known source of income - these situations are inarguably criminalised in the proposed Bill and the Forfeiture of Proceeds of Crime ACT.

Further, gain or advantage is criminalised in Section 27, Conflict of interest, of the proposed Bill.

The bottom line is, the provisions of the divine law are provided in the proposed Bill and the the Forfeiture of Proceeds of Crime ACT.

In retrospect, undoubtly, thence, the assumed divinity of section 37 and the rhetoric arising is merely evidence of a narrow interpretation of anti-corruption laws and indeed the political polarisation inherent in this country. The divine law is still intact, only its interpretation is misconstrued.

Tuesday, November 2, 2010

The debate on the ACC Bill of September 16, 2010 centres on the assumed “removal” of section 37 of the ACC ACT No. 42 of 1996. Note that the existing law is being reviewed and not amended. It is clearly important that a discussion of whether section 37 is being “removed” or “reviewed” be considered within this context. The international instruments that Zambia is party to provide for legislative reform in a threefold manner. That is, (a) criminalisation of corrupt acts; (b) Seizure of proceeds of crime; and (c) Protection of witnesses or whistleblowing. To which end, early this year two new laws critical to strengthening anti-corruption in Zambia were enacted. These are, the Forfeiture of Proceeds of Crime ACT No. 19 of 2010, and the Public Interest Disclosure (Protection of Whistleblowers) No. 4 of 2010.

The salient assumptions of section 37 of the ACC ACT No. 42 of 1996 are that:

(a) Wealth, property or income disproportionate to one’s known source of income (that is, present or past official emoluments) is a product of abuse or misuse of public office or authority.

(b) Wealth, property or income disproportionate to one’s known source of income is a product of a corrupt act,

The question then is – has the likelihood that where it is a product of abuse or misuse of public office or authority been addressed in the proposed Bill? This has been addressed when the proposed Bill is read together with the Forfeiture of Proceeds of Crime ACT No. 19 of 2010.

Section 31, Non-conviction based forfeiture order for tainted Property, of the Forfeiture of Proceeds of Crime ACT No. 19 of 2010 provides that:

“Subject to subsection (2), where a public prosecutor applies to the court for an order under this section and the court is satisfied on a balance of probabilities that the property is tainted property, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the State.”

The Forfeiture of Proceeds of Crime ACT defines tainted property as:

“means –

(a) any property used in, or in connection with, the commission of the offence; (b) property intended to be used in, or in connection with, the commission of the offence; or

(c) proceeds of the offence”.

In addition, The Forfeiture of Proceeds of Crime ACT defines property as including

any real or personal property, money, things in action or other intangible or incorporeal property, whether located in Zambia or elsewhere and includes property of corresponding value in the absence of the original illegally acquired property whose value has been determined.

Manifestations of an individual having abused or misused his office position or authority; or maintaining a standard of living above that which is commensurate with his present or past official emoluments, is the physical existence of tainted property!

Section 54, Seizure of property, of the proposed Bill provides the following:

“(1) Where in the course of an investigation into an offence under this Act, an officer has reasonable grounds to suspect that any movable or immovable property is derived or acquired from corrupt practices, is the subject matter of an offence or is evidence relating to an offence, the officer shall, with a warrant, seize the property".

(4) For the purpose of this section, “property” means real or personal property of any description, and includes money and any interest in the real or personal property.

In addition, Section 68 of the proposed Bill provides that, the provisions of the Forfeiture of Proceeds of Crime Act, 2010, shall apply in relation to the seizure and forfeiture of any proceeds or property corruptly acquired by any person and any other related matters.

Further, Part III of the proposed Bill, Corrupt Practices, criminalises misuse or abuse of a public office for private advantage or benefit, and this is provided in a variety of ways, which is more extensive than the existing law.

For example, Section 21, Corrupt use of official power, of the proposed Bill provides that:

“(1) A public officer who, being concerned with any matter or transaction falling within, or connected with, that public officer’s jurisdiction, powers, duties or functions, corruptly solicits, accepts or obtains, or agrees to accept or attempts to receive or obtain for oneself or for any other person any gratification in relation to such matter or transaction, commits an offence”.

The proposed Bill defines gratification as:

“gratification” means any corrupt payment, whether in cash or in kind, any rebate, bonus, deduction or material gain, benefit, amenity, facility, concession or favour of any description and any loan, fee, reward, advantage or gift, or any other thing obtained as a result of the corrupt misuse or abuse of public funds or property, other than a casual gift.

Evidence of criminalisation of the most known manifestations of corruption is provided the outstanding features of the proposed Bill relating to:

(a) Manifestations of corruption such as opportunities for financial kickbacks in the design or selection of uneconomical projects, procurement, public bidding (tenders), illicit payments of "speed money" to government officials to facilitate the timely delivery of goods and services to which the public is rightfully entitled (like permits and licenses) are provided in Sections 19 to 23, 25, 28, 31, and 32.

(b) Manifestations of corruption arising from conflict of interest are criminalised in Section 27, Conflict of interest. This new offence is timely, as the country can no longer have public servants running business become suppliers to the very departments they work for.

(c) Manifestations of corruption of theft or embezzlement of public property and monies, and tax evasion are now criminalised in Section 33, Corrupt acquisition of public property and revenue. Of particular interest in Section 33 are the offences of acquiring public property or a public service or benefit; diverting any public property for that person’s or another person’s benefit; and, obtaining any exemption, remission, reduction or abatement from payment of any tax, fee, levy or charge required to be paid under any law; commits an offence.

Thence, I observe in "A view from a broken mirror", a detailed reading of the Bill will show that it does actually strengthen anti-corruption in the country, as it is cognisant of the fact that corruption is a set of behaviours and practices that have manifestations that can have deleterious effects on individuals, society, business, and the State.

Tuesday, October 26, 2010

In writing this article, I first seek to categorically state that in our attempts to conceive the Barotse Question of self-determination and secession as an inane emotional attachment to historical romanticism, and a threat to the existing ‘assumed’ state of peace, lie the very threat to our nation-state’s peace and stability.

That a people that once felt a sense of existing in a defined nation-state today seek to live apart from that nation-state is itself indicative of the fact that something has gone miserably wrong.

In expressing myself here in, I do not seek claim to prodigious knowledge on the Barotse Question, but merely attempt to communicate the inherent threat of conceiving the issue as a question of historical romanticism. It is in this respect that I address the question to the best of my learned ‘ignorance’ and often-detached sense of belonging.

First, on the Barotse Question are the voices premised on arguments that it is neither socially relevant nor politically correct in today’s context. I argue that the social relevance of calls for self-determination lie in the political and historical cognisance of the undeniable fact that attempts to assert the right to self-determination and indeed the extreme threat of secession have through history shaped today’s role model political and governance structures.

Strategies and structures of devolution of power, decentralisation, federalism are inherently socio-political conflict resolution strategies with a historical genesis embedded in the very process whose social relevance is today found to be abhorrent. The often times upheld governance structures of states like the USA are the classical illustration of this fact.

On the other hand, the argument of the Barotse Question’s political incorrectness arises simply because of today’s Zambia’s obtaining political environment. This is a political environment where political correctness only allows expression and attitudes that do not and are unlikely to disturb the status quo as determined by the obtaining political philosophy of those that are in power. In an atmosphere of intolerance and reluctance to dialogue, I hasten to submit that a call for self-determination is politically incorrect. But, one has to ask - where from then is the threat to peace and stability, the Barotse Question’s proponents or the political governance fragility of the existing nation-state?

However, if we convince ourselves that the obtaining political reality is in itself politically correct, then, the political correctness of a call for self-determination should be seen in its catalytic light. That is, the unavoidable need to change our present governance structures so as to allow for more representative structures of governance.

Premised on the foregoing, I submit that a concerted resurgence of the call for self- determination can have desirable effects on Zambia’s present mode of governance. May be the missed opportunities of the 1993-5 Constitutional Review (and ended the one that just ended)regarding devolution of power to the provinces can become a reality!

Second, and maybe louder, are the voices arguing that the Barotse Question is founded on historical romanticism. These voices I find to simply symbolise the unfortunate unconscious indoctrination of being in an assumed peaceful and stable multi-ethnical nation-state.

Of concern to these voices are the questions:

1. What is the extent (boundaries of the Barotse kingdom and on what legitimacy are these boundaries?

2. Do the other non-MaLozi (or subgroups) inhabitants of Barotse also have a claim to self-determination or will the King impose his views?

3. What are the contentions in the Barotse Agreement?

First I must state here that in addressing these concerns one is inevitably drawn into the polemics and diametrical questions of definitions. This I will try to avoid. In my simplest understanding, a nation is a ‘common’ sense, a feeling, an idea of belonging to an ethnic or multi-ethnic group. This ‘common’ sense, or idea can arise through ancestry, immigration, and or whatever other factors of human mobility that result in one finding himself or herself with a sense of belonging to that particular nation.

Here in, lie the polemics, for the latter, also shows a nation is nothing much but an evolution of historical romanticism!

The concept of a state, on the other hand, regularises and legitimises this amorphous entity, through institutions and structures. The institutions and structures often embody mechanisms that facilitate or enforce observance of duty or obedience to the state.

Barotseland was and is still a nation-state. This, the British, too, recognised, least the Barotse Agreement would not have been entered into. Any arguments to the contrary are merely an inept attempt to falsify history. Thence, relative to defining Barotseland’s geographic space, one is drawn to the understanding that boundaries are simply the extent of physical land occupation or ownership of a people with the idea of belonging. This extent, history has shown, can even imply such areas as at the time occupied by the group of people in question. (C.f., The case for Israel). However, given that Africa’s nation-states are rooted in the historical context of colonialism, concerns of geographic space should be seen in this light. And should, above all, recognise the fact that the nation-state as a western colonisation process dismembered Africa’s already existing boundaries defined by ‘common sense’, or ‘idea of belonging’.

In retrospect, the question of geographic legitimacy, becomes one of setting an epoch that will define an ‘acceptable’ criteria by which any people seeking self-determination can be provided concessions as to the extent of their claim to a historical nation-state. I must mention here that unfortunately the western societies’ definition of Africa’s nation- states is today what is internationally recognised, and is, in part, not only the genesis of contemporary Africa’s problems, but also the inherent problem to Africa’s redefinition of its boundaries.

Further, the concerns relating to other non-MaLozi’s inhabiting Barotseland invokes in me the issue of inclusion and exclusion. If we are to assume my conceptualisations of a nation and state provided here in are to some degree valid, then we must acknowledge the fact that the Barotse nation-state was one characterised by inclusion of all groups who paid homage to the King. We should, here in, however acknowledge the fact that historically Barotseland was highly socially stratified. There was the royal. And there was the commoner. But, the governance structures were (is) such that the Prime Minister (Ngambela) is always a commoner!

On the question of the contentions in the Barotse Agreement, I here simply surmise that the underlying premise of the contentions is the recognition of Barotseland as an autonomous state, whose autonomy should have been guaranteed in the post colonial period. I am afraid there are various views on this, and in the end it is just as polemical as the question of a nation-state.

Lastly, there have also been arguments that the Barotse Question’s likely effect of fragmenting an already existing nation-state is counter presently obtaining global trends of amalgamations of countries in the West. This, I find to be a blatant misinterpretation of the genesis of perceived global trends. Simply because this view conveniently or ignorantly, does not recognise the fact that fragmentation and the consequent process of devolution of power due (in part) to assertions of self-determination are the founding stones of these nations that today can easily economically amalgamate.

In addition, the proponents of the foregoing concern often seek refugee in Africa’s decaying adage of ‘strength in unity’, without embodiment of the requisite fact that such strength only exists were the consequent processes of conflict resolution such as devolution of power have evolved.

In ending my submission, I first seek to argue that counter-proponents of the Barotse Question should at least attempt to avoid the unconscious inclination of considering whosoever propagates or supports a particular notion or assertion as doing so out of a sense of ethnical or political affiliation. This is an unconscious inclination that we surely at this stage in history should liberate ourselves from, as it is merely a microcosm of the country’s political leaders.

Secondly, I argue that reasoning is a process that deals with the separates and seldom the totality. Thence, if one has to follow the separates argued here in, one should surely acknowledge the fact that if the Barotse Question is simply historical romanticism, then surely the nation-state we so cherish and call Zambia is indeed nothing but the epitome of colonial historical romanticism. And that our existence as a nation-state is not founded on ‘strength in unity’, but on the sustenance of a status quo that is embedded in political intolerance and command approaches to governance.

Ours is an illusion of well being in a geographic space defined by forces that knew little of existing social spaces. That the continent is today beset with myriad crises is simply evidential of the dangers of not only accepting that illusion, but more so seeking coherence in the illusion. What we should seek are the assumed ‘abhorrent’ lessons of calls for self-determination and or secession. That is the conflict resolution strategies inherent. The Barotse Question should never be conceived as a recipe for chaos. The imminent fragmentation of a nation-state underlying such an issue should in my ‘ignorance’ be conceived as the fragmentation of existing unacceptable political structures!

Hence, in conclusion I ask - Does self-determination mean fragmentation of existing nation-states?

[The Barotse Agreement in pdf download is available at http://miliko.vndv.com]

(first published in The Monitor Issue No. 64 Friday July 23 - Thursday July 29, 1999)

- fencing the ACC Bill of September 16, 20101.0 About the MirrorWe all wake up everyday, and look at the mirror. The mirror always shows an image of ourselves as we hope to look that morning. If it does not, we polish ourselves until we are happy with the image. Hah, beautiful! We then continue with our morning chores as the image we have now seen will not scare the world outside of our private spaces.

Many Zambians, ranging from Radio talk show chatterboxes , tabloids, politicians, lawyers to NGO leaders, have looked at (or heard of) the proposed review of the ACC ACT No. 42 of 1996, and are not happy with the image now reflected as the Anti-Corruption Bill of September 16, 2010. Some of these profess an inarguable understanding of anti-corruption, and hence their understandable anger, and well throughout submissions on the issue. Others profess a disputable understanding of anti-corruption, and hence the allegations that the ruling party seeks to protect “thieves” or those that abuse public office for private gain.

The problem with all the contentions is, first that there is a fundamental absence of an understanding that at a distance anti-corruption is a compendium of broken mirrors. Thus, for us to understand whether the proposed review of the current ACC ACT justifies the opposition so far evidenced, these mirrors have to be coalesced into one.

Second, it is also clear that a good number of the so-called newsworthy individuals that have commented on this issue have not read the Anti-Corruption Bill of September 16, 2010.

2.0 The ContentionsFrom the onset, it must be clear that in this discussion, there is no portending of one being the epitome of the anti-corruption discourse. The discussion simply attempts to clarify why most of the concerns are not founded in an understanding of anti-corruption, but merely a rhetorical argument founded on mistrust and positioning anti-corruption in a single mirror.

The debate on the ACC Bill of September 16, 2010 centres mostly on the “removal” of section 37 of the ACC ACT No. of 1996, and the definitions of corruption or corrupt behaviours in the Bill, thereof. At face value, this section has been removed.

Section 37 titled “Possession of unexplained property”, reads as follows:(1) The Director-General, the Deputy Director-General or any officer of the Commission authorised in writing by the Director-General may investigate any public officer where there are reasonable grounds to believe that such public officer – (a) has abused or misused his office position or authority to obtain property, wealth, advantage or profit directly or indirectly for himself or any other person; (b) maintains a standard of living above that which is commensurate with his present or past official emoluments; (c) is in control or possession of pecuniary resources or property disproportionate to his present or past official emoluments; or (d) is in receipt of the benefit of any services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act.

(2) Any public officer who, after due investigation carried out under subsection(1), is found to – (a) have misused or abused his office, position, or authority to obtain advantage, wealth, property or profit directly or indirectly; (b) maintain a standard of living above which is commensurate with his present or past official emoluments; (c) be in control or possession of pecuniary resources or property disproportionate to present or past official emoluments; or (d) be in receipt of the benefit of any services which he may reasonably be suspected of having received corruptly or in circumstances which amount to an offence under this Act;

shall, unless he gives a reasonable explanation, be charged with having, or having had under his control or in his possession of pecuniary resources or property reasonably suspected of having been corruptly acquired, or having misused or abused his office, as the case may be, and shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control or into his possession or, as the case may be, how he came to enjoy the benefit of such services, be guilty of an offence.

(3) Where a court is satisfied in proceedings for an offence under subsection (2) that, having regard to the closeness of his relationship to the accused and to other relevant circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused, or acquired such pecuniary resources or property as a gift, or loan without adequate consideration, from the accused, such pecuniary resources or property shall, in the absence of a satisfactory explanation by or on behalf of the accused be deemed to have been under the control or in the possession of the accused.

(4) In this section, "official emoluments" include a pension, gratuity or other terminal benefits.

The salient assumptions of this section are that:(a)Wealth, property or income disproportionate to one’s known source of income (that is, present or past official emoluments) is a product of abuse or misuse of public office or authority;(b)Wealth, property or income disproportionate to one’s known source of income is a product of a corrupt act; and that,(c)The burden of proof that one did not abuse or misuse public office or authority, or indulge in a corrupt act resulting in him or her having wealth, property or income disproportionate to one’s known source of income is not on the State (the accuser).

2.1 The State’s DefenceThe State in proposing the “removal” of provisions of section 37 in the “contentious” Bill contends that:(a)In the current socio-economic dispensation, wealth, property or income disproportionate to one’s known source of income is not necessarily a product of abuse or misuse of public office or authority, or a corrupt act, as such an individual could be involved in running a business that provides the disproportionate wealth, property or income; (b)The section’s shifting of the burden of proof on the accused individual negates the Constitutional provisions of the Constitution of Zambia ACT of 1996. That is, Article 18 (2) Provisions to secure protection of law, which reads “Every person who is charged with a criminal offence (a) shall be presumed to be innocent until he is proved or has pleaded guilty”. This can be read together with Article 18 (7), which states that, “A person who is tried for a criminal offence shall not be compelled to give evidence at the trial” and that,(c)Abuse of office is provided in Section 99 (that is, Abuse of authority of office) of the Penal Code ACT CAP 87 of the Laws of Zambia.

2.2 The Objectors ArgumentsObjectors (NGOs, Opposition political parties, lawyers and others), on the other hand, contend the following on the “removal” of section 37 in the current ACC ACT:(a)“The Bill in its current form, fails to adequately align with the provisions of regional and international convention especially when behaviour and corrupt practices like Abuse of Office and Illicit enrichment, which are prominently addressed in the key conventions are left out ” Transparency International – Zambia (TIZ) submission to Parliament ; and mostly that,(b)The term “abuse of office” is conspicuously absent in the proposed Bill, which is not in line with internationally accepted definitions of Corruption. 3.0 The DialecticsThe State’s argument of the likelihood of an individual accruing wealth, property, or income disproportionate to one’s known source of income, as not necessarily being a product of abuse or misuse of public office or authority, is valid. The question then is – has the likelihood that where it is a product of abuse or misuse of public office or authority been addressed in the proposed Bill? Yes, it has been addressed, as shall be discussed later, in particular the introduction of the conflict of interest provisions.

However, it is also here argued that the State’s argument that section 37 negates Constitutional provisions is inept. This is because Section 31, Non-conviction based forfeiture order for tainted Property, of the Forfeiture of Proceeds of Crime ACT No. 19 of 2010 provides the contrary.

Note that, Section 31 (1) provides that:“Subject to subsection (2), where a public prosecutor applies to the court for an order under this section and the court is satisfied on a balance of probabilities that the property is tainted property, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the State.”

Section 31 (2), further, provides that, “Where a person claiming an interest in property to which an application relates satisfies the court that the person – (a) has an interest in the property; and (b) did not acquire the interest in the property as a result of any serious offence carried out by the person and (i) had the interest before any serious offence occurred; or (ii) acquired the interest for fair value after the serious offence occurred and did not know or could not reasonably have known at the time of the acquisition that the property was tainted property;

The court shall order that the interest shall not be affected by the forfeiture order, and the court shall declare the nature and extent of the interest in question.

The Forfeiture of Proceeds of Crime ACT defines tainted property as:“means – (a) any property used in, or in connection with, the commission of the offence; (b) property intended to be used in, or in connection with, the commission of the offence; or (c) proceeds of the offence”.

It is, thus, argued that this section undoubtedly shifts the burden of proof. This clearly implies that it is the accused person who has to prove that the property was not acquired illegitimately.

Further, whereas objectors have admirably argued their case, and indeed that they have acknowledged the strengthening of anti-corruption in some sections in the proposed Bill is commendable, some of their contentions are, however, disputable.

First, on defining corruption, the ACC ACT No. 42 of 1996 defines corrupt as:“the soliciting, accepting, obtaining, giving, promising or offering of a gratification by way of a bribe or other personal temptation or inducement, or the misuse or abuse of a public office for private advantage or benefit, and corruptly shall be construed accordingly”.

The proposed Bill, on the other hand, defines corrupt as:“the soliciting, accepting, obtaining, giving, promising or offering of a gratification by way of a bribe or other personal temptation or inducement, and “corruption” shall be construed accordingly”.

The contentions in this definition is the absence of the words “misuse or abuse of a public office for private advantage or benefit”. To which end, TIZ observes that:“The new definition is not compliant with the United Nations Convention Against Corruption and the SADC Protocol Against Corruption. There is no justification why Abuse of power or office should not be one of those behaviours and practices prohibited by the Anti Corruption law in Zambia unless if such has to be legalised. Under Article 19, under, Abuse of functions, the UNCAC Convention provides that “Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity”.

Section 99, Abuse of authority of office, in the Penal Code, provides that:“(1) Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights or interests of the Government or any other person, is guilty of a misdemeanour. If the act is done or directed to be done for purposes of gain, he is guilty of a felony and is liable to imprisonment for three years.

(2) A prosecution for any offence under this or either of the two last preceding sections shall not be instituted except by or with the sanction of the Director of Public Prosecutions”.

This section clearly does provide for misuse or abuse of a public office for private advantage or benefit. The critical terms that are being contended, are evident in this section. These are “abuse of the authority of his office” and, “for purposes of gain”. In addition, as shall be shown in succeeding sections, the provisions of Article 19 of the United Nations Convention Against Corruption are substantively provided in the proposed Bill.

To which end, the statement that “there is no justification why Abuse of power or office should not be one of those behaviours and practices prohibited by the Anti Corruption law in Zambia unless if such has to be legalised ”, is infelicitous. This statement is also indicative of the lack of understanding that the ACC ACT No. 42 of 1996 is NOT solely the only anti-corruption law in Zambia. In any case, the criminalisation of corrupt behaviours and practices is provided in the proposed Bill .

Moreover, whether the removal of section 37 negates anti-corruption by a mere omission of expected terms or that it is provided for in the Penal Code is pedantic. It is an argument that simply enhances the view from a broken mirror. This is because Part III of the proposed Bill , Corrupt Practices, criminalises the actual manifestations of misuse or abuse of a public office for private advantage or benefit.

For instance, Section 21, Corrupt use of official power, of the proposed Bill provides that:“(1) A public officer who, being concerned with any matter or transaction falling within, or connected with, that public officer’s jurisdiction, powers, duties or functions, corruptly solicits, accepts or obtains, or agrees to accept or attempts to receive or obtain for oneself or for any other person any gratification in relation to such matter or transaction, commits an offence”.

Another concern on the State’s argument that the Penal Code does provide for abuse of office, is that its removal from the ACC ACT (which is not the case as will be more evident from the succeeding), implies that it is within the jurisdiction of the Police and not the Anti-Corruption Commission (ACC). It is further argued that possession of unexplained property is not covered in the proposed Bill.

This is grave sophism.

Part III of the proposed Bill, which is within the jurisdiction of the ACC, provides for criminalisation of the most known manifestations of corruption, and clearly does cover illicit property or possession of unexplained property. In addition, there is no rule of thumb, which says only the Police can handle Penal Code offences. The ACC has used the Penal Code in the past.

It is also, here, argued that the NGOs’ concern that Section 99 of the Penal Code in referring to Abuse of authority of office as a misdemeanour minimises the seriousness of corruption as this “makes it less serious with weak sanctions and penalties”, is regrettably evident of objectors not having read the proposed Bill in its entirety. Hence, it is argued that, if Section 21 of the proposed Bill adequately covers the concern on misuse or abuse of a public office for private advantage or benefit, then it should be inarguable that its being considered misdemeanour in Section 99 of the Penal Code is obtuse. This is because the penalty for Section 21, Corrupt use of official power, provided in Section 40, General penalty, is severe.

Section 40, General penalty, states: “A person who is convicted of an offence under this Part, for which no penalty is provided, is liable -(a) upon conviction, to imprisonment for a period not exceeding ten years; (b) upon a second or subsequent conviction, to imprisonment for a term of not less than five years but not exceeding ten years; and (c) in addition to any other penalty imposed under this Act, to forfeiture to the State of any pecuniary resource, property, advantage, profit or gratification received in the commission of an offence under this Act”.

Second, illicit property or possession of unexplained property is not only covered under the manifestations of corruption that the proposed Bill extensively addresses itself to, but also Section 31, Non-conviction based forfeiture order for tainted Property, of the Forfeiture of Proceeds of Crime ACT No. 19 of 2010, as shown above.

Premised on the core of most of the dissenting views on the proposed Bill, it is undoubted that a reservation that will be raised on the definition of tainted property is surely that the words “corruptly obtained” are not in the definition.” The bottom line, however, is that any property acquired in the commission of an offence is tainted property. Thence, if we accept that corruption is an offence, then this surely addresses the concern of illicit property or possession of unexplained property. It must be understood that illicit property or possession of unexplained property has no single law enforcement jurisdiction domain, and its provision in the Forfeiture of Proceeds of Crime ACT allows all law enforcement agencies the leeway to apply it in pursuit of their legal mandates.

Even if we are to accept that the provisions of the Forfeiture of Proceeds of Crime ACT do not substantively address the issue of illicit property or possession of unexplained property, it is argued, here, that Section 35, Concealment of property, of the proposed Bill does so. Section 35 states:“A person who – (a) converts, transfers or disposes of property, knowing that such property is the proceeds of corruption or related offences for the purpose of concealing or disguising the illicit origin of the property or of helping any other person who is involved in the commission of the offence to evade the consequences of that person’s action; (b) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to property which is from the proceeds of corruption or related offences; or (c) acquires, possesses or uses any property with the knowledge at the time of receipt, that such property is from the proceeds of corruption or related offences; commits an offence and is liable, upon conviction, to imprisonment for a period not exceeding two years.”

If we read this provision together with Section 31 in the Forfeiture of Proceeds of Crime ACT, the “balance of probabilities that the property is tainted property” can subsume the assumption of knowledge of commission of an offence.

Third, evidence of criminalisation of the most known manifestations of corruption is, here now, shown in the outstanding features of the proposed Bill relating to:(a)Manifestations of corruption such as opportunities for financial kickbacks in the design or selection of uneconomical projects, procurement, public bidding (tenders), illicit payments of "speed money" to government officials to facilitate the timely delivery of goods and services to which the public is rightfully entitled (like permits and licenses) are provided in Sections 19 to 23, 25, 28, 31, and 32. These sections provide for anti-corruption in the contexts of Corrupt practices - by, or with, public officers; by or with, private bodies; by, or with, agents; or members of the public or private. This is, with respect to solicitation, offering of bribes and any gratification as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, anything in relation to any public matter or transaction, actual or proposed.

Note that, Section 28, Gratification forgiving assistance, etc., with regard to contracts, also criminalises such manifestations. Section 28 states:“(1) A public officer who, directly or indirectly, by oneself, or by, or in conjunction with, any other person, corruptly solicits, accepts or obtains, or agrees to accept or attempts to receive or obtain, from any person for oneself or for any other person, any gratification as an inducement or reward for or otherwise on account of, that public officer giving assistance or using influence in, or having given assistance or used influence in – (a) the promotion, execution or procurement of (i) any contract with a public body or private body for the performance of any work, the provision of any service, the doing of anything or the supplying of any article, material or substance; or (ii) any sub contract to perform any work, provide any service, do anything or supply any article, material or substance required to be performed, provided, done or supplied under any contract with a public body or private body; or (b) the payment of the price, consideration or other moneys stipulated or otherwise provided for in any contract or sub contract; commits an offence.(2) A person who corruptly gives, promises or offers any gratification to any public officer as an inducement or reward for, or otherwise on account of, such public officer giving assistance or using influence in, or having given assistance or used influence in – (a) the promotion, execution or procurement of; or (b) the payment of the price, consideration or other moneys stipulated or otherwise provided for in; any contract or sub-contract commits an offence”.

Noteworthy is that the succeeding cited Section 28, also provides for manifestations of corruption as in the sale of official posts, positions, or promotions; nepotism; or other actions that undermine the creation of a professional, meritocratic civil service.

Particular mention should also here be made of Section 32, Coercion of investor , which states that:“A public officer who –(a) performs or abstains from performing any act in that public officer’s capacity as a public officer; (b) expedites, delays, hinders or prevents the performance of any act; or (c) assists, favours, hinders or delays any person in the transaction of any business with a public body; in order that an investor or potential investor is coerced, compelled or induced to abandon the investment or induced to abandon the investment to the advantage of another person, commits an offence and is liable, upon conviction, to a fine of not less than two hundred thousand penalty units or to imprisonment for a period not exceeding two years, or to both.”(b)Obstruction of justice and interference in the duties of agencies tasked with detecting, investigating, prosecuting illicit behavior, and arbitrating (the judiciary) is criminalised in Section 24, Corruption of witness, and in Section 30, Obstruction of justice . Section 30, for instance in part, states:“A person who, by use of corrupt means interferes with the exercise of official duties by a judge, magistrate, judicial officer or any other arbiter or law enforcement officer, commits an offence and is liable, upon conviction, to imprisonment for a period not exceeding two years”.(c)Manifestations of corruption arising from conflict of interest are criminalised in Section 27, Conflict of interest. This section states:“(1) Where a public body in which a public officer is a member, director, employee or is otherwise engaged proposes to deal with any person or company, partnership or other undertaking in which that public officer has a direct or indirect private or personal interest, that public officer shall forthwith disclose, in writing to that public body, the nature of such interest.(2) Where a public officer or a relative or associate of such public officer has a personal interest in a decision to be taken by a public body, that public officer shall not vote or take part in any proceedings or process of that public body relating to such decision. (3) A public officer who contravenes subsection (1) or (2) commits an offence and is liable, upon conviction, to imprisonment for a period not exceeding three years.(d)Manifestations of corruption of theft or embezzlement of public property and monies, and tax evasion are now criminalised in Section 33 , Corrupt acquisition of public property and revenue. Section 33 states:“(1) A person who fraudulently or unlawfully- (a) acquires public property or a public service or benefit; (b) diverts any public property for that person’s or another person’s benefit; (c) mortgages, charges or disposes of any public property; or (d) obtains any exemption, remission, reduction or abatement from payment of any tax, fee, levy or charge required to be paid under any law; commits an offence .

(2) A person whose functions concern the administration, custody, management, receipt or use of any part of public revenue or public property commits an offence if that person – (a) fraudulently makes payment from the public revenue for - (i) goods not supplied or not supplied in full; or (ii) services not rendered or not adequately rendered; or (b) willfully fails to comply with any law or applicable procedures or guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of public expenditures.

(3) A person who commits an offence under this section is liable, upon conviction, to imprisonment for a period not exceeding five years.

(4) For the purposes of this section, “public property” means real or personal property, including public funds or money of a public body or under the control of, or consigned or due to, a public body”.

Lastly, the ACC’s jurisdiction on corruption during an election is now provided for in Section 34. This Section states that the Commission has jurisdiction to investigate and prosecute any offence of bribery prescribed under the Electoral Act, 2006.

In retrospect, the foregoing shows that the proposed Anti-Corruption Bill of September 16, 2010 is cognisant of the fact that corruption is a set of behaviours and practices that have manifestations that can have deleterious effects on individuals, society, business, and the State. From the foregoing, it is evident that the Bill to a considerable extent addresses the manifestations, and indeed the behaviours and practices characterising corruption or a corrupt act.

4.0 A View from a Broken MirrorWhen I started writing this paper on the so much talked about proposed Anti-Corruption Bill of September 16, 2010, I did mention that at a distance anti-corruption is a compendium of broken mirrors, and that the concerns are mostly a fundamental absence of this understanding.

The issues I have discussed in the foregoing, inarguably show a critical failure of reasoning mostly premised on the assumption that we should have silo-mentality, and the inability to coalesce the broken mirrors into one. That is, in our laws we should read the exact terminologies that exist in international instruments; in a manner that we as individuals or NGOs construe; or, that we should only look at the single piece of the mirror that makes us look beautiful.

To understand, anti-corruption efforts and its strengthening, thereof, we should discard silo-mentality. We should sometimes accept that the terms like “abuse or misuse public office or authority” can be substantively provided for by simply criminalising the manifestations of these behaviours , or even writing them differently. Thus, I here strongly argue that the proposed Bill has irrevocably achieved anti-corruption strengthening.

It should irrefutably be accepted that manifestations are more evidential than actual terminologies describing an offence, and easier from a prosecution perspective. This is however, not to say terminologies are redundant, but to merely fence the importance of such an approach.

I, further here argue that, adherence to international instruments cannot be solely from use of terminologies. It should be from whether the deleterious effects the instrument seeks to address are substantively covered.

In retrospect, the Anti-Corruption Bill of September 16, 2010 is only a view from a broken window, if one does not synthesis its provisions and that of other laws critical to anti-corruption. It grates to think just because a particular terminology is used in an international document or a law from some other country, then it is right that that terminology should also be reflected in our documents, with the requisite commas and full stops.

To which end, the question that should be asked (if we do not see the famed anti-corruption catchwords) is - are the manifestations of abuse or misuse public office or authority or corruption itself, per se, provided for in the proposed bill, and other laws critical to anti-corruption? The answer is definitely a function of whether anti-corruption in the proposed Bill is viewed from a broken mirror or coalesced mirrors!

Saturday, June 5, 2010

There is nothing sinister or euphoric about Fred Mmembe's conviction and incarceration. Contempt of court laws have always existed and will continue to exist. If we begin to understand why jurors in America are sequestered during some trials, then we will begin to make informed decisions on the contempt of court laws. Let us learn to be objective. I find that as a people we react with emotions and not reason. Mmembe is not the first to be cited and convicted on the archaic law of contempt of court, and he will not be the last as long as archaic laws are not reviewed or repealed. As hard as we may find it, Mmembe is a victim of laws we could have reviewed decades ago. I have not pity whatsoever, because as a people we continually suffer from historic amnesia.

Why then do we cry now, when we have hundreds of our fellow citizens imprisoned without bail over several archaic laws. There are hundred of our fellow ciizens languishing in jails on bailable offences simply because they have no sureties or permanent domicile. Mmembe's case should be debated in the broader sense and not the narrow self-serving purview of political rhetoric that it is currently being given. RB did not write the archaic laws. How come we are not asking why opposition MPs have not lobbied for repeal or review of the archaic laws in our statutes. It is our narrow consideration of issues that lead this country nowhere.

Monday, May 31, 2010

On July 13 2009, I wrote a blog “Unnatural offences, unnatural thinking!”, contesting the hullaballoo over the Post editor (Chansa Kabwela or something like that. I always get the name wrong). I observed that Kabwela’s being charged with one of the many unnatural offences in our laws is a contradiction of natural thinking. I argued that “it is reflective of unnatural thinking”.

Today, after patiently waiting for comments from our very informed Civil Society Organisations on an event that should have brought this issue back to the human rights discourse in Zambia and indeed, the Media front pages, I am dismayed and yet again forced to revisit what it is that Civil Society Organisations in Zambia affirm to be defending.

I argued many years ago that human rights values or belief systems are internalised, cherished and protected either because of an extreme experience or because of a result of the recognition of the functionality of the value or belief system to an individual. And further that for, the defence of human rights in Zambia, to be effective and contribute to an acceptable politico-socio-economic environment and governance mode, it is important that defenders embody functionality in a much broader sense that citizens can identify with and duly recognise the functionality of human rights. In addition, I vehemently argued that human rights defense should NOT be the observable narrow functionality targeting Donor appeasement, and sustenance of new power structures that often have seen individuals emerge as the new political leaders; or indeed the narrow functionality of human rights as an international academic exercise distant from the impoverished reality of citizens in the developing world.

At least, however, I am glad that MISA Zambia’s Henry Kabwe issued a statement on the matter, though I disagree with his statement that “the move will assist in restoring government's credentials.”

I will come back to this later. First, let us take a walk into memory lane, with only a few examples.

February 11, 2002. Fred M’membe was arrested and charged with defamation of the President Mwanawasa. M’membe was detained at Woodlands Police station and was released on bond when his lawyers sought the intervention of the Director of Public Prosecutions. The police alleged that Fred M’membe and FDD Lusaka Central MP Dipak Patel had defamed the president by calling him a cabbage in an article in the Post Newspaper of January 25.

June 7, 2002. Editor-in-chief Emmanuel Chilekwa, Kingsley Lweendo, Shadreck Banda and Jane Chirwa appeared before a magistrate court for allegedly defaming the President. The quartet was charged with defaming Mwanawasa in a story that appeared in newspaper edition number 17.

None of these cases ended in a conviction, they were discontinued. But, both made headline news and CSO noises to the effect that in the same year Civil Society in Zambia affirmed the need to (and I quote):

“To remove existing media laws that criminalise journalism. Laws relating to Defamation of the President, Publishing False News, Sedition, Espionage are deterrents to investigative journalism. For instance, Section 69 of the penal code, relating to Defamation of the President, has been used to silence dissenting views and criticism of government or key office bearers such as the president. This archaic piece of legislation makes it an offence to defame the President. It remains an offence under this provision for anyone, with intent to bring the reputation of the President into hatred, ridicule or contempt, to publish any defamatory matter, whether in writing, print, word of mouth, or any other form or manner.” (c.f. Political Governance in Zambia- A Civil Society Position, 2002)

Eight years later, we learn that Darius Mukuku was on March 18, sentenced by the Ndola Magistrate's court to eighteen months imprisonment for defamation of the President. Darius Mukuku was on May 25, Africa Freedom day, pardoned by the President of the Republic of Zambia. President Rupiah Banda ordered the Minister of Home Affairs to remit in whole the sentence slapped on Darius by Ndola Magistrate Court on March 18, 2010.

The only Civil Society Organisation to have commented on the issue is MISA-Zambia. MISA-Zambia is reported to have “expressed gratitude to President, Rupiah Banda for pardoning Darius Mukuku who was sentenced to 18 months imprisonment for defamation of the president. And that, “MISA Zambia Chairperson, Henry Kabwe says the move will assist in restoring government's credentials.” (http://www.muvitv.com/newsindepth.php?id=3481)

I find it derisory that organisations that seek legitimacy on the basis of there being human rights defenders and or indeed good governance defenders can not acknowledge a milestone on the archaic law of defamation of the president. Irrespective of whether President Rupiah Banda sought political advantage by pardoning Darius Mukuku or whether he did it out of his own good will, the objective fact of the matter is that he pardoned the man who was convicted of defaming the presidency.

Inarguably, this puts the Police in an awkward position relative to enforcement of this law. Notwithstanding the latter, President Rupiah Banda’s act inadvertently provides an opportunity for CSOs to urge/lobby that this law be reviewed or repelled. That CSOs have not ceased this window of opportunity is tragic, and brings into question whose interests they claim to defend.

This act by President Rupiah Banda should further be conceived beyond the narrow purview of “restoring government's credentials”. What credentials are being restored when the Police are about to charge Frank Bwalya with the same archaic law?

In my mind I have no doubt that CSOs’ silence and the narrow purview of the issue, simply evidences the tragic reality that human rights and good governance defense in Zambia is simply a comedy for donor appeasement. The individuals that so claim to be defenders have never internalised the values they so claim to institutionally defend. President Rupiah Banda should be engaged on this archaic law, and not let the issue slide into obscurity as we do with many issues. He has opened the window, and surely I expect CSOs to be clambering through the window all the way to Parliament.

Thursday, May 20, 2010

If I remember, on July 16, 2002 or there abouts I was one of the NGO types that marched from Northmead to parliament grounds seeking the removal of FJT's immunity. I was then head of mission - research and development at Afronet. We sought the lifting of FJT's because, as Afronet we also had information that included the fact that USD47m from the privatisation of the Roan Antelope Mining Corporation was not accounted for; and that USD20.5m was allegedly paid by the Chiluba government for weapons which never arrived. In his speech to parliament, Mwanawasa simply made known our suspicions.

Further, in our position paper ""Conman without Borders - Ari-Ben Menashe", we did allege that Beni Menashe was paid more than US$6 million for the maize he never delivered. The popularly known as Carlington maize saga.

With hindsight, I am bemused that CSOs (we were called NGOs then), never asked why FJT ended up being charged over a so-called plunder matrix of payments from an intelligence account. Of the 12 counts in the judgement before me, there is not a single mention of millions!

And how did the British have a grandstand seat in the whole saga? Let us think again. There are missing links.

Tuesday, May 4, 2010

Now they are concluding that Mufumbwe violence is a microcosm of 2011. How inanalytic can we be! By-election events can only be representative of a major election, when you remove the participation of other persons who will be busy seeking their own re-election in over 3000 polling sites. Deploying "tujili jili" cadres to all these sites, will be a feat I seek not to miss.

Tuesday, April 27, 2010

Analysis: (a) Lower ratio win in either scenario denotes gains by opposing Party; (b) Voting pattern more an ethnical factor in Milanzi; and,(c) Mufumbwe UPND/PF candidate had stronger showing in last election. Muzungu is a chief's protégé, and evidence shows chief's do not influence voting.

Summation. Test of Opposition gains is in Milanzi.

On FB on April 10, 2010Milanzi, Mufumbwe by-elections prediction based on an analysis of parliamentary election results from 1991 to 2006, shows that the MMD has the least chance of winning. The two scenerios are that single opposition parties have consistently won in these constituencies, and that the single instancies when the MMD has won,... the opposition as a sum total of their votes still mustered a slim majority.In addition, Mufumbwe shows a high probability of success by the Opposition coalition, not just numerically, but also that the MMD candidate's creditials are scarred by the miserable loss in 1991.

Saturday, March 27, 2010

On Kasisi Children’s Home website , at the bottom left hand corner, there is a link that reads “from the webmaster”. When you follow it, you will come to an article I wrote many years ago. The article is titled “Footprints in the Sands of History”. It is a tribute to the sisters, mothers and children of Kasisi Children’s Home. A Home in which I have over the years found comfort, support and love.

I write “I came to your world as a stranger, but today I am a friend, a brother, and son. Today, I know there are no other footprints I seek to tread, but yours. In my journey, I know I will falter and meander, but in my heart I know that since your footprints in the sands of history are an inerasable monument, from the distance I will always see your footprints.”

It is an old article, and has been on the website for quite some time now. A week ago Mamusia[2] asked me when I was going to write another article. 'I do not know', was at the time the most logical answer I could give, not knowing that tomorrow there will be an event that will force me to think twice.

Over the years, I have reduced on writing mostly because I believe Zambians do not read. It seems to me they are still steeped in folklore as the most effective means of communication. What is said by mouth often travels much faster than what is in print. The only exception is if what is in print is slander or an untruth, then it surely travels as fast as it will be conceived to be a truth. In fact, most often what is said by mouth is based on innuendo and the most absurd.

Anyway, the bottom line is, today, I yet again seek to communicate in the form I know and understand best. Words of pen.

And this is because Peter was scrounging in our garbage bin!

I have not done much that I know is written in the stars. My destiny. It is written in the stars, that ours shall be the kingdom. It is written in the stars that we are all stars. Our ways should light the path of darkness, not only for ourselves but more so for those that come before us, for those that do not have the strength to walk with us, and for those that fell before us. We are the light, and our ways, not our words, should be the living monuments of that light.

Children come in from the dark into our world, frail and weak, and it is our promise that the children run and play in open skies and greener green open fields.
It is our promise that tomorrow, the children walk with us, as we should be the light.

It is our promise that tomorrow, the children too become the light for those to come before them.

This is the promise, and we should always try not to break it.

This has been my promise. To be the words that are written in the stars. I broke that promise. And it is really not the promises we keep that matter most. It is those we break.

With hindsight a tear always falls. I will tell you why.

I first came to have a sense of an unjust act at a very early age. Six or seven years old. Or may be it was when I deciphered the words in the bright stars on a cloudless night. Or may be this is because there are events in our lives that never fade. They scar you so deep that you will always remember the event like you are seeing it recur today. Psychologists always argue that the traumas of our childhood will always come to haunt us. But often we never think much about this psychology construct until it hits you full in the face.

Long time ago, when most children enjoyed being children, and the roads and open fields where the playground. We decided to try a game of golf. We had got tired of the usual mocking around pretending to be Pele or Godfrey Chitalu. Our golf clubs, were grass-slashers. Golf balls, anything that could be hit and fly!

With darkness fast closing on us, and the different moms screaming their lungs out for us to go in doors, the golf game reached a crescendo. It was then it happened.

"She is fine guys. Look she is not crying or making noise."

"But she is bleeding badly."

"Of course, women bleed badly even from just a scratch."

And with our well rationalised child observations, we ran into our respective homes.
Little did I know that my father stood at a distance. Listening. Watching.

Never thought much of the incident, as me and my younger brother were being scrubbed. Mom always scrubbed us like we have never had a bath in a year or so.
It was only when we were about to walk into the living room, that even at that young age my heart nearly failed. I walked into the living room like a zombie, while my younger brother zoomed off into the bedroom with the speed of light!

My father looked at me and simply said. "It is those that scream without raising their voices that need our help the most."

He asked mom to help him take the woman to the clinic, and asked us to clean up the blood that had messed his "Persian carpet". At that time we found it strange that he had allowed the woman to bleed all over his "Persian carpet", when he always ranted whenever we stepped on it with muddy shoes: which we deliberately did quite often.

As they walked out into the dark, I heard mom say. "It is those that hear the silence that make a difference in the lives of others."

Looking back, it is then that I knew there is a promise we all should keep.

It is then that I knew silence must be heard.

It is then that I knew we are all stars.

Since then, in all my years, I have listened to the silence, the screams only the deaf hear, and indeed tried to keep the promise of what is written in the stars. This is because my parents lived the promise, and in latter years Kasisi, the footprints in the sands of history that is an inerasable monument, are that promise.

In due fairness to myself, I know in my heart I have kept promises. And that they have been kept is a story that needs not to be told.

It those I have broken, whose story needs to be told.

Peter.

Peter is a promise that I broke.

I worked in human rights activism, not because it was vogue, but because I believed I could change the lives of those not able to stand up for themselves. It is within this purview of life and destiny that I met Peter.

We did a lot of good work as human rights activists, but with hindsight we broke a lot of promises. Our failure was that we gave people hope, but we did not give them a new life. Hope is a feather in a whirlwind, and it dissipated as soon as our shadows disappeared with the sun disappearing on the horizon.

Peter, like many others was a victim of the State. The police tortured him and broke his soul. Like the young soldier in a Copperbelt town that ended up in a wheel chair after the police broke his knees, we picked them up and promised we will light the path of darkness their broken souls were heading into by seeking justice for them.

If I may digress. It is hard and sad that today I am writing my deepest inner feelings in promises I broke. But may be it will help those that also read the words written in the stars. The young soldier in the Copperbelt town could have had justice prevail, but we failed because among us are those who claim to keep the promise but merely do so for their own personal pursuits and egos. These individuals have lamentably failed to comprehend that that there is no higher calling than that where a human puts the interests of others before his or hers. Or like I write somewhere (I can not remember where) - "it is only when you move beyond fascination with yourself that you can change other lives".

We were youthful and we sincerely believed our ways could light the path of darkness, not only for ourselves but more so for those that come before us, for those that do not have the strength to walk with us, and for those that fell before us. Peter, the young soldier on the Copperbelt fell before us, and we picked them and gave them the promise of hope.

For over ten years, I gave Peter the hope that the State (government of Zambia) will compensate him for the torture he and his friends (they were five and three are long dead) suffered at the hands of the police. I gave him this hope, because I took it upon myself to pursue the case. Visited offices, called friends in public offices that could help me seek closure to the case and compensation, thereof. Human Rights Commission, and the offices of the Solicitor General, and Attorney General. I also even consulted lawyer friends in case we may need legal action to further our cause.

In all this time, Peter would religiously turn up at my door, and I would religiously assist him get to the one office he was always told "to come tomorrow". I would sometimes call the office so as to make it easier for him, and the person at the other end of the line would courteously give me hope that today is the day our over ten years of seeking justice will come to a close.

As the hope faded, I watched Peter degenerate.

In earlier years, Peter was a happy young man. He would turn up at my door smiling. His poor clothing and shoes looking clean. We would sit and chat of what to do next.
As the years passed, the clothing and the shoes started having holes, and I started giving him my old clothing and shoes. One day in the cold season, he even asked for warm bedding for his mother.

It was then the cleanliness, too, started fading, the alcohol smells started increasing, and hunger signs started being etched on his face. We now started giving him food.

His frequency at my door increased and I started to be agitated. My daughter did not mind Peter. I always actually sensed she pitied him and that she really did not understand the bond between us. But because each day I saw Peter was a failing to me, I really could not bring myself to explain to her why Peter always came to our door.

My calls to the offices that could help Peter also started to be infrequent, as I now knew like the young soldier on the Copperbelt, I could not keep the promise I made to Peter. I could not help him seek justice. The journey had run its course. I had failed to keep to the words written in the stars.

One day in October 2009, I told Peter I could no longer help him. I, with great sadness, told him I had failed, and it is time he accepted there will be no justice, no compensation for him. I also told him to reduce on knocking on my door.

I wanted to tell him to stop being on my door, but I did not have the strength.
Peter did not shed a tear. He just looked at me like he did not understand what I was saying. I later shed a tear.

Peter now started hanging out by the gate. Every time I drove out in the morning, Peter would come to my car window, hand stretched out hoping I would give him some money or food. But I did not, as I really now wanted him out of my life. I had failed destiny and I hoped he would understand that.

A month later, I was standing on my balcony enjoying a cup of coffee when I saw Peter. The hand holding the cup limped. A tear fell.

Peter was scrounging in our garbage bin!

For over ten long years I had stood by Peter. We gave Peter food. We gave him clothing. But I did not light the darkness so that Peter can have a meaningful life.

I did not even know Peter. In all these years I never even knew where Peter lived. I never knew who his mother was. I never even knew where he slept.

Peter! I am sorry. I heard your silence. You screamed without raising your voice, and I heard.

Peter! I am sorry. I hope somewhere you have found peace and have it in you to forgive me for wasting your life by giving you false hope.

Peter! I am sorry. You may smell, be in torn clothing, but deep in my heart I know you are the light. I write the words in this article to your memory and thank you for allowing me to walk with you. The journey with you was a lesson that I will cherish and never forget in my life.

We are all stars. The light.

I failed you, but you taught me humanity. You taught me the struggles of keeping the promise. That our ways should light the path of darkness, not only for ourselves but more so for those that come before us, for those that do not have the strength to walk with us, and for those that fell before us.

Peter! I am sorry, but thank you.

NB: This article is a true-life story and not a work of fiction. Peter exists and is not a creation of my imagination. Thank you for reading this article, and I hope we will always be the light for others less fortunate than ourselves.

If you fight against the wrongs of a Mugabe, by portraying him as having absolutely no goodness and as personifying all the evil in the world, while avoiding or failing to see nothing but goodness in Morgan, you are likely to fortify the wrong while failing to prepare for the good that should substitute it after you have gotten rid of what you identified, perhaps rightly as bad, because you diverted focus on the total spread of the badness, which had never been a monopoly of the Mugabe. You would also, perhaps, have prepared the ascendancy of a Morgan, whose suitability you had not critically and thoroughly questioned.

On a similar note, If you fight against the wrongs of a Banda (and let us not forget that even Levy had his share of being similarly fought!), by portraying him as having absolutely no goodness and as personifying all the evil in the world, while avoiding or failing to see nothing but goodness in a substandard and sectarian Sata, a money-mongering and regionalist HH and a Eurocentric Chongololo, equally money-monger type (and you can’t even rule out possibility of such being, even by default, as sectarian (religiously self- righteous claims to being picked by God!) and regionalistic, like, perhaps, young Chipimo, and God-knows who else! You are likely to fortify the wrong while failing to prepare for the good that should substitute it after you have gotten rid of what you identified, perhaps rightly as bad, because you diverted focus on the total spread of the badness, which had never been a monopoly of the Banda or MMD that is so easy And popular to attack and scandalise. You are also, perhaps, preparing and facilitating for the ascendancy of people whose suitability you had not critically and thoroughly questioned.

NB: I reproduce this write-up from a friend who remains anonymous, as I found it to be an interesting read.

Okay, forget about the lack of intelligence in a world that boasts of an educated population. Yes, for a second, forget the fact that there are persons on this earth that have about fifty-four thousand and seven hundred (54 750) nappies to launder in a year - and all because of love.

Take just a second for introspection on your existence. If tomorrow, the children were to follow your footprints in the sands of history, where will they end up?

Dear friends, I ask this question simply because every day when I reflect on our footprints in the sands of history, I always shudder. Not with fear, but with an unnerving sadness. Will my footprints in the sands of history, reflect a humane existence?

Two intellections I write somewhere come to mind.

The first is that, "States fail simply because some individuals can no longer bear their moral debt.”

The second is, “The fact that we have security of life amidst increasing numbers of the poor in our population simply means that our moral debt is everyday increasing. Thus, acting to reduce our moral debt is the only means by which our security of life can be sustainable and not the mere safeguard of the law".

The point being, our footprints in the sands of history can only have meaning if the others are an integral part of our good fortunes. That we continue existing, while others cling to the knife-like edges of human existence is a fallacy.

Today, I urge you to understand that we afford to have peace of mind and security, not because of the force of the law, but that someone out there who, through no fault of his or hers, deserves a life as just as ours has footprints in the sands of history that reflect a higher morality than ours. We owe this often unknown, unnoticed and beautiful person our gratitude, not the State.

Fact is, it is often the majority of those that are needy that do not resort to crime or to behaviours disruptive to our privileged existence. It actually is those that are privileged that are a threat to our existence. Its either they feel that their moral debt is overburdening, or their immorality is such that they abuse the underprivileged into criminality. The latter can be directly or by providing erroneous beliefs that it pays to be immoral.

In this scenario, the individuals that suffer the most are children. That we have children existing in an abyss of need is not because their parents were wanting. Could be their parents were wanting (in extreme cases of deviance), but often its because our predecessors footprints in the sands of history were such that they created an existence where today's children find themselves in an abyss of need.

It really does not take much to change our footprints in the sands of history. Kasisi Children's Home, Mother Teresa, et cetera, have exemplified this through out our life's journeys. The tragedy is, we seem not to learn. Our footprints in the sands of history continually reflect an existence that is self-conceited.

How can it be so difficult to alter our footprints in the sands of history? If, it has occurred to you that no child should die of hunger, no child should die of disease communicable through birth, then it surely should be that tomorrow you will walk a journey that will leave footprints in the sands of history that reflect an inner love for humanity. If the contrary, then surely your existence is simply a lie.

Friends, if I may close my clutter of thought.

Today, I realise how privileged I am. I am privileged not because I am educated and have been able to market my labour for a near decent wage.

No, I am privileged simply because someone unnoticed, unknown and beautiful - who is less privileged than I - has footprints in the sands of history that reflect a strong etch of morality than mine. That unnoticed, unknown and beautiful person’s footprint in the sands of history protects my livelihood. That person can only be a child. That person is indeed the child in all of us, and more so in the less privileged who have not resorted to crime or disruptive behaviours. Children are innocent, and that unnoticed, unknown and beautiful person embodies the innocence of the children.

I owe it to the children to also walk a life’s journey that lightens their days. My desire is that my footprints in the sands of history should be an everlasting monument - a tomb of humanness.

This desire, I also owe to the Sisters, mothers and children of Kasisi Children's Home. Today, I confess. Your footprints in the sands of history are a providential etch in my life's journey.

I came to your world as a stranger, but today I am a friend, a brother, and son. Today, I know there are no other footprints I seek to tread, but yours. In my journey, I know I will falter and meander, but in my heart I know that since your footprints in the sands of history are an inerasable monument, from the distance I will always see your footprints.